La Chance v. National Pigments & Chemical Co.

• Decision Date: 06 April 1937
• Docket Number: No. 24013.,24013.
• Citation: 104 S.W.2d 693
• Court: Missouri Court of Appeals
• Parties: LA CHANCE v. NATIONAL PIGMENTS & CHEMICAL CO.

104 S.W.2d 693

LA CHANCE v. NATIONAL PIGMENTS & CHEMICAL CO.

No. 24013.

St. Louis Court of Appeals. Missouri.

April 6, 1937.

Rehearing Denied May 18, 1937.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

"Not to be published in State Reports."

Action by Joseph La Chance against the National Pigments & Chemical Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Boyle & Priest, G. T. Priest, and Robt. E. Moloney, all of St. Louis, for appellant.

Igoe, Carroll, Higgs & Keefe and Paul G. Ochterbeck, all of St. Louis, for respondent.

BENNICK, Commissioner.

This case, which comes to the writer on reassignment, is an action for damages for the alleged malicious prosecution by the defendant of a criminal charge against the plaintiff. Judgment was rendered in plaintiff's favor for the sum of $1,000 actual damages and $1,500 punitive damages; and defendant's appeal to this court has followed in the usual course.

The plaintiff is Joseph La Chance, who resides near Potosi, in Washington county, Mo., where the defendant, National Pigments & Chemical Company, owns thousands of acres of land upon which it is extensively engaged in tiff mining.

The case grows out of the prosecution of plaintiff, in January, 1932, upon a charge of petit larceny in connection with the taking of six sheets of tin roofing which it seems now to be conceded were the property of the defendant.

Prominently identified with the case is one Henry Skaggs, a tiff miner in the employ of the defendant, who lived with his wife in a log house which belonged to the defendant. It appears that a shed, which had originally stood back of the house, had rotted down, and that the six sheets of tin roofing which had constituted the roof of the shed had been removed by Skaggs and stacked under his front porch to await whatever use might ultimately be made of them. The sheets, incidentally, had become rusty, and were broken and full of nail holes, so that they were worthless for any purpose except perhaps for use as a "tiff platform" such as the tiff diggers customarily employ in their individual mining operations. The prosecuting attorney, in drawing the information under which plaintiff was tried on the charge of stealing the sheets of roofing, put their value at only $3, while so far as the evidence in the case was concerned, the only value shown was that of 15 cents a sheet, which one Tate, a brother-in-law of Skaggs, had offered the latter for the lot upon the assumption that they belonged to him. In fact, so little were they regarded by defendant itself that even after the prosecution of plaintiff had ended and the roofing had been conceded by all parties to be the property of defendant, the company's officials had made no effort to repossess the same, thus indicating that in instigating the prosecution of plaintiff upon the larceny charge it was not with the value of the property taken that defendant was primarily concerned.

It seems that plaintiff, along in the fall of 1931, had taken notice of the roofing stacked under Skaggs' front porch, and had inquired of Skaggs whether it belonged to him. Upon being informed that it did, plaintiff had asked about buying it, whereupon Skaggs had replied to him, "You have been awful good to me, I will give it to you if I get a house I am thinking about to move in." Elsewhere in his testimony plaintiff explained that the understanding was that in the event Skaggs moved, plaintiff was to have the roofing, but that if Skaggs remained where he was, he would need the roofing for his own use in the construction of a "car shed."

So matters stood for some two or three months, with plaintiff stopping to inquire about the roofing every time he had occasion to pass Skaggs' house, and with Skaggs in each instance informing him that he had not yet obtained the new house, but that he felt certain that he would shortly make the move he was contemplating.

About the first of December, 1931, plaintiff stopped at the Skaggs home in company with his brother, Elmer La Chance, and one Verne Hays, and finding Skaggs himself to be away, inquired of Mrs. Skaggs about the roofing. According to the testimony, she informed plaintiff that her husband "had got the house," and said to him, "Go ahead and take the tin any time you get ready." She put no qualifications whatsoever upon plaintiff's right to take the roofing at any time that he might desire, and it is significant that neither Skaggs nor his wife ever suggested to plaintiff in any conversation about the matter that the roofing actually belonged to the National Pigments & Chemical Company.

About a week after the conversation with Mrs. Skaggs plaintiff again came by the house, and noticed that a car was standing out in front with a load of furniture on it. Skaggs had meanwhile gone over to his new home with another load of his furniture, and there was no one at the old home at the time plaintiff stopped in except Tate and Thomas Valley, both of whom were brothers-in-law of Skaggs. Plaintiff inquired of them if the Skaggs were moving, whereupon Valley replied, "Yes, and the tin he was going to give you he told me to tell you that the tin was under the porch; he piled it up under the porch for you." It was then broad daylight, about 4 o'clock in the afternoon. Plaintiff thereupon took the roofing out from under the porch, all in the presence and with the knowledge of both Tate and Valley, and not having a conveyance with him at the time, carried it piece by piece across the field in the back of the house towards a road which ran along the edge of an adjacent patch of woods. The record does not disclose just what was done with the roofing at the moment, but it was evidently at some later time that plaintiff came by with his wagon and took it on to his own home.

It seems that Valley later informed Skaggs that plaintiff had taken the roofing away, and that Skaggs reported the matter to Lewis Politte, the defendant's assistant foreman and tiff weigher. A day or so later plaintiff had occasion to go to defendant's place of business with a load of tiff, and while he was there Politte came over to his wagon and asked him whether he had taken the roofing from the property where the Skaggs family had lived. Politte himself testified that plaintiff readily admitted that he had taken the roofing, but stated by way of explanation and excuse that Skaggs had given it to him. Politte then told plaintiff that the roofing had not belonged to Skaggs, whereupon plaintiff asked Politte if he thought that the company would sell it, to which he replied that he would have to report the circumstances to Miles, the foreman, whose province it would be to determine what action should be taken in the matter.

Plaintiff subsequently inquired of Politte from time to time what the company had decided to do about the roofing, but was continually put off without a definite answer until January 11, 1932, when he was arrested by the sheriff of Washington county, and brought before a justice of the peace to answer to the charge of petit larceny under an information which had been filed by the prosecuting attorney at the instance of Miles, the defendant's foreman.

It is an admitted fact that when Politte informed Miles that plaintiff had taken the roofing, he also told him of plaintiff's contention that Skaggs had given it to him. Miles thereupon called upon Skaggs, but not upon plaintiff, and upon Skaggs' denial that he had assumed to give the roofing to plaintiff, Miles, without giving plaintiff an opportunity to support his claim, took Valley and went with him before the prosecuting attorney, where Valley made an affidavit to serve as the basis for the issuance of the warrant for plaintiff's arrest.

It appears, incidentally, that not only did Miles, in his preliminary investigation of the case, not go to the trouble to consult with plaintiff regarding his version of the circumstances under which he had taken the roofing, but that in subsequently relating the case to the prosecuting attorney, no mention was made by either Miles or Valley of plaintiff's claim that the roofing had been given him by Skaggs without his knowing that it had not belonged to Skaggs. After the prosecuting attorney had heard such partial version of the facts as Miles and Valley elected to acquaint him with, he gave it as his opinion that a case of petit larceny could be made out if Miles wished to prosecute, and upon Miles' indication that he desired a prosecution to be had, the prosecuting attorney wrote out the affidavit for Valley to take over to the justice of the peace and sign.

On the morning of the hearing before the justice, and about an hour before the case was called for trial, plaintiff went up to Miles and attempted to explain to him that Skaggs had purported to give him the roofing. However Miles would not listen to plaintiff's explanation, his response being that "he wasn't worried about that at all; he was just going to learn him something." It appears further that plaintiff was tried on the very morning of his arrest; that he had had no knowledge of the impending prosecution prior to the time of his arrest; and that although he asked Miles, in the presence of the prosecuting attorney, to allow him to have an opportunity to employ an attorney to represent him, he was given no such opportunity, but was compelled to act for himself in cross-examining the witnesses for the state, and in presenting his defense.

The evidence for plaintiff discloses that Miles took an active part in the prosecution and assisted the prosecuting attorney in the examination of the state's witnesses, who consisted of Mr. and Mrs. Skaggs, together with Tate and Valley, and whose testimony was to the effect that Skaggs had not represented to plaintiff that the roofing belonged to him, but that plaintiff had taken the roofing, knowing that it was not the property of Skaggs, but that it belonged to the National Pigments...